CAN EMPLOYERS REQUIRE MEDICAL EXAMINATIONS WITHOUT VIOLATING THE DISCRIMINATION LAWS?

Robin Foret March 8, 2009 — 6,938 views

Can employers require applicants to take medical examinations as a condition of employment?Can they compel their employees to submit to medical testing?The answer to both questions is yes, but only when certain requirements of the Americans with Disabilities Act (“ADA” or the “Act”) are satisfied.Certainly, medical examinations can be an integral part of maintaining a safe workplace, especially in industries that employ individuals to operate heavy equipment, drive or perform other industrial tasks that require a particular level of physical and mental fitness.In order to avoid a discrimination claim under the ADA, however, an employer must adhere to the standards that allow an exception to the ADA’s general prohibition against medical exams in the employment setting.

What requirements must be met before a medical examination can be conducted without violating the ADA?

The ADA generally prohibits an employer’s use of medical examinations that tend to screen out those individuals with a disability or inquire as to the severity of any disability.The general prohibition against medical testing is designed to prevent companies from making employment decisions based on general unfounded assumptions about certain physical and/or mental impairments without an actual determination as to whether the individual is capable of performing the specific job duties that will be required.In fact, employees, as well as applicants for employment, do not need to be disabled under the ADA to have a discrimination claim for improper medical testing.

An exception to this general prohibition may apply if a particular test, as utilized by the company, is “shown to be job-related for the position in question and is consistent with business necessity.” 42 U.S.C. §12112(b)(6) & §12112(d). The burden is on the employer to show that the medical examination serves a genuine business necessity given the particular job duties at issue, and is no more intrusive than necessary to accomplish the company’s legitimate goal. It is not necessary for the employer to demonstrate that the testing method chosen is the only way of achieving a business necessity.

Wice v. General Motors Corp., 2008 WL 5235996 (E.D. Mich.) is one of only a handful of cases to provide guidance on what constitutes medical testing that meets the job-related and business necessity requirements of the ADA’s exception to the ban on medical testing in the employment context. In Wice, the court upheld General Motors Corporation’s (“GM”) medical screening process for employees to verify their ability to safely operate mobile equipment such as forklifts, cranes and bulldozers.GM required all millwright employees, including Harvey Wice, to renew their in-plant driver’s license every three years. As part of that process, employees were required to attend refresher training and pass a medical examination to ensure that these individuals had the reflexes, visual acuity, musculature and coordination necessary to operate equipment safely. GM claimed that the medical examinations also helped the company meet state safety regulations that mandated that employees who operated heavy equipment meet minimum fitness standards.

Wice had successfully renewed his in-plant license on many occasions since 1971, but in 2001, he refused to take the medical test required to renew the license.GM allowed Wice the opportunity to have the exam conducted by his own doctor, who concluded that “Wice was able to work and drive and operate equipment.” GM determined that more detailed information was required and asked Wice to complete a more detailed form, but he refused. Wice was then barred from operating mobile equipment in the plant, and for a period of time, was barred from working overtime because there might be a risk that no other employee who could operate mobile equipment would be on site after hours.

The court agreed with GM, and concluded that the medical testing employed by the company satisfied the business necessity test because it was related to whether Wice was able to safely perform the essential functions of his job. Screening employees for medical conditions that might interfere with their ability to operate heavy equipment was a reasonably effective means of achieving the goal of ensuring workplace safety.

What does this mean for employers who wish to conduct medical examinations?

The Wice decision provides guidance on the meaning of the terms “job-related” and “business necessity” under the Act.A medical test will generally be job-related when it helps determine whether or not an employee can perform the essential functions of his or her job. Business necessity refers to the employer’s business reason for requiring the assessment, for example, to ensure job safety in the workplace.In Wice, medical testing of employees who operated heavy equipment to ensure job safety met both requirements under the ADA.Furthermore, the test was conducted in a reasonable manner as the company permitted the employee to have the test performed by his own doctor.

Can employers conduct pre-employment medical examinations under the ADA?

A medical test may be required as a condition of employment only in the following circumstances: (1) after an offer of employment has been made to the job applicant but before he or she actually begins to perform the job duties; (2) when the inquiry is for the purpose of evaluating an applicant’s ability to perform the job-related duties for which he or she has been hired; and, (3) when all similarly situated applicants are asked to submit to the same medical examination, for example, when all individuals in the same job category are subject to the same safety requirements.

What is the bottom line for employers?

Medical testing can be an important part of the employee screening process, and is often necessary to ensure workplace safety, to comply with federal and state regulations and/or to meet other legitimate business necessity concerns. Nevertheless, employers must exercise due diligence to make sure they comply with the specific requirements of the exceptions to the ADA’s general prohibition on medical testing in employment.If the employer will be unable to show that the medical testing is job-related and consistent with business necessity, the test may constitute discrimination against the employee or applicant, regardless of whether that individual is actually disabled under the Act.

The information contained in this article is not designed to address specific situations, and does not include rules and regulations that apply to all states.If you have questions concerning this topic, you should consult with legal counsel of your choice to obtain advice on various fact specific matters.

Robin Foret

Robin Foret practices in the areas of employment law, commercial litigation and specialty insurance defense claims. She handles a variety of employment matters such as theft of trade secrets, breach of employment agreements, non-competition agreements, wage and hour issues under the Fair Labor Standards Act (FLSA), discrimination and harassment issues under Title VII of the Civil Rights Act of 1964 (Title VII) and the Texas Commission on Human Rights Act (TCHRA), the Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA) issues, and the Sarbanes-Oxley Act (SOX). Robin has handled a wide variety of employment law matters for employers, as well as for executive-level employees, before agencies, and state and federal courts.